Citation Nr: 0819611
Decision Date: 06/13/08 Archive Date: 06/18/08
DOCKET NO. 05-08 165 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent
for chronic fatigue syndrome (CFS).
2. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Sorisio, Associate Counsel
INTRODUCTION
The veteran had active service from July 1990 to July 1993.
These matters come before the Board of Veterans' Appeals (BVA
or Board) from a September 2004 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Chicago, Illinois. These matters were previously before the
Board in August 2007 and were remanded for further
development.
In May 2007, the appellant testified during a videoconference
hearing before the undersigned Veterans Law Judge. A
transcript of that hearing is of record.
FINDINGS OF FACT
1. Throughout the rating period on appeal, the veteran's CFS
is manifested by fatigue, headaches, muscle aches, and
cognitive impairment, which are not so severe as to restrict
routine daily activities to 50 to 75 percent of the pre-
illness level, or; which wax and wane, resulting in periods
of incapacitation of at least four but less than six weeks
total per year.
2. The veteran's service-connected disabilities are
headaches, rated as 10 percent disabling from May 18, 2001,
and 30 percent disabling from June 30, 2003; fibromyalgia,
rated as 20 percent disabling from June 30, 2003; and CFS,
rated as 20 percent disabling from June 30, 2003, with a
combined service-connected disability rating of 10 percent
from May 18, 2001, and 60 percent from June 30, 2003.
3. There has been no demonstration by competent clinical
evidence of record that, at any time during the rating period
on appeal, the veteran's service-connected disabilities
precluded him from maintaining substantially gainful
employment consistent with his education and occupational
experience.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20
percent for CFS have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10,
4.88b, Diagnostic Code 6354 (2007).
2. The criteria for the award of TDIU benefits have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321,
3.340, 3.341, 4.16, 4.17, 4.18 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable AOJ decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman held that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, VA is required to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and/or an effective date will
be assigned in the event of award of benefits sought.
In this case, the veteran is appealing the initial rating
assignment as to his CFS. In this regard, because the
September 2004 rating decision granted the veteran's claim of
entitlement to service connection, such claim is now
substantiated. His filing of a notice of disagreement as to
the September 2004 initial rating determination does not
trigger additional notice obligations under 38 U.S.C.A.
§ 5103(a). Rather, the veteran's appeal as to the initial
rating assignment here triggers VA's statutory duties under
38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties
under 38 C.F.R. § 3.103. Dingess/Hartman, 19 Vet. App. at
493. As a consequence, VA is only required to advise the
veteran of what is necessary to obtain the maximum benefit
allowed by the evidence and the law. This has been
accomplished here, as will be discussed below.
The April 2006 statement of the case (SOC), under the heading
"Pertinent Laws; Regulations; Rating Schedule Provisions,"
set forth the relevant diagnostic code (DC) for rating the
CFS disability at issue (38 C.F.R. § 4.88b, DC 6354), and
included a description of the rating formulas for all
possible schedular ratings under this diagnostic code. The
appellant was thus informed of what was needed not only to
achieve the next-higher schedular rating, but also to obtain
all schedular ratings above the initial evaluation that the
RO had assigned. Therefore, the Board finds that the
appellant has been informed of what was necessary to achieve
a higher rating for the service-connected disability at
issue.
With regard to the TDIU claim, the veteran was issued VCAA
notice letters in July 2003, May 2004, December 2005, March
2006 and August 2007. These letters advised the veteran of
the information and evidence necessary to substantiate the
TDIU claim, as well as the distribution of responsibility
between him and VA in obtaining such information and
evidence. He was also requested to provide any pertinent
information in his possession to VA.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that a
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Here, the Board finds that any defect with respect
to the timing of the VCAA notice requirement was harmless
error. Although VCAA notice was not completed prior to the
initial adjudication, the TDIU claim has been readjudicated
thereafter. The appellant has been provided with every
opportunity to submit evidence and argument in support of his
claim and to respond to VA notices. Further, the Board finds
that the purpose behind the notice requirement has been
satisfied because the appellant has been afforded a
meaningful opportunity to participate effectively in the
processing of his claim. For these reasons, it is not
prejudicial to the appellant for the Board to proceed to
finally decide this appeal.
Duty to assist
With regard to the duty to assist, the claims file contains
the veteran's service medical records and reports of post-
service private and VA treatment and examination.
Additionally, the claims file contains the veteran's
statements in support of his claims, to include testimony at
a videoconference hearing. The Board has carefully reviewed
his statements and testimony and concludes that there has
been no identification of further available evidence not
already of record. The Board has also perused the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the veteran's claims.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claims. Essentially, all available evidence
that could substantiate the claims has been obtained.
Analysis
The Board has reviewed all of the evidence in the veteran's
claims file, with an emphasis on the evidence relevant to
this appeal. Although the Board has an obligation to provide
reasons and bases supporting this decision, there is no need
to discuss, in detail, the extensive evidence of record.
Indeed, the Federal Circuit has held that the Board must
review the entire record, but does not have to discuss each
piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000). Therefore, the Board will summarize the
relevant evidence where appropriate, and the Board's analysis
below will focus specifically on what the evidence shows, or
fails to show, as to each claim.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2007). When a question arises
as to which of two ratings applies under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating
will be assigned. Id. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. Id. § 4.3.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Moreover, an appeal from the initial assignment of a
disability rating, such as this case, requires consideration
of the entire time period involved, and contemplates staged
ratings where warranted. See Fenderson v. West, 12 Vet. App.
119 (1999).
I. Increased rating- CFS
The veteran contends that his CFS is worse than initially
evaluated and it warrants an increased initial rating.
The veteran was originally denied service connection for CFS
in a June 2002 rating decision that was not timely appealed.
See Board decision and remand, dated in August 2007. The
September 2004 rating decision on appeal granted service
connection for CFS and assigned a 10 percent rating,
effective June 30, 2003. The April 2006 statement of the
case Decision Review Officer's decision increased the initial
evaluation for CFS to 20 percent, also effective June 30,
2003.
Under Diagnostic Code 6354, a 20 percent evaluation is
warranted when there is evidence that the fatigue symptoms
are nearly constant and restrict routine daily activities by
less than 25 percent of the pre-illness level, or; wax and
wane, resulting in periods of incapacitation of at least two
but less than four weeks total duration per year. A 40
percent disability rating is warranted where there is
debilitating fatigue, cognitive impairments, or other
impairments such as inability to concentrate, forgetfulness,
confusion or a combination of other signs and symptoms, which
are nearly constant and restrict routine daily activities to
50 to 75 percent of the pre-illness level, or; which wax and
wane, resulting in periods of incapacitation of at least four
but less than six weeks total per year. For the purpose of
evaluating this disability, the condition will be considered
incapacitating only while it requires bed rest and treatment
by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354,
Note.
A report of a VA examination conducted in October 2007
indicated that the veteran's claims file and Computerized
Patient Record System records were reviewed. At this
examination, the veteran complained of being constantly tired
with headaches of varying severity and degree. He also
reported an inability to get restful sleep. Additionally, he
reported muscle and join pain. The examination report
indicated that there was no medical evidence of hospital or
emergency room visits since 2003. It was also noted that the
veteran was working for a judge as a clerk part time for two
years. It was indicated that, at Hines VA in Chicago in
2001, the veteran had reported that he had incapacitation for
several weeks for CFS and inability to sleep. It was also
reported that in 2003 he was incapacitated for several months
for the same reason and was terminated from his job. The
veteran further stated that he was diagnosed with cognitive
impairment in July 2005.
Upon physical examination, the VA examiner noted that the
veteran was not under acute distress, aggressive and
agitated. The veteran was alert and oriented x3. He was
also aware of latest news. There was no evidence of memory
loss or cervical/axillary lymphadenopathy. The VA examiner
noted that the veteran was taking medications for migraine
headaches and CFS. Regarding fatigue, the veteran reported
constant fatigue for more than 24 hours after exercise along
with migratory joint pains in his wrists, knees, feet, back,
and hips that are constant at about 5-7/10 (dull and
throbbing and squeezing pain). Constant migraines were also
noted. The examination report indicated that no new
diagnostic tests were ordered, but the report included a
review of the results from a sleep study from 2005 and a CT
of the head also from 2005. The sleep study revealed the
presence of continuous loud snoring provoking marked sleep
fragmentation suggesting a diagnosis of obstructive sleep
apnea. The impression of the 2005 CT of the head was a
normal study. The 2007 VA examiner's diagnosis was CFS.
A review of VA treatment records, dated from July 2004 to
December 2005, confirmed the veteran's symptoms of fatigue
and his diagnosis of CFS. An August 2005 neurology
consultation revealed that the veteran was alert and oriented
to time, place, and person. At that time, it was also noted
that the veteran's speech, visual fields, and cranial nerve
examination were all normal. VA treatment records from June
2003 to October 2003 also indicated symptoms of CFS,
including fatigue. See, e.g., October 2003 VA treatment
record (indicating fatigue with no recurrence of short-term
memory difficulties).
A private psychoeducational report of testing conducted in
August 2005 revealed that the veteran's overall cognitive
development was in the high-average range relative to his
same-age peers, with superior working memory abilities and
significant deficits processing routine visual information
quickly. It was noted that his scores on the CAARS suggested
that his presenting difficulties were not the result of a
diagnosable attention deficit. It was further noted that his
profile of scores on the PAI suggested that he was
preoccupied with health concerns and had difficulties with
anger management and affective stability. The Axis I
diagnosis was learning disorder, not otherwise specified.
The veteran also underwent a VA examination in July 2004 for
CFS. The veteran reported severe fatigue that was constant
and that he tried to exercise by walking. The veteran
related that he has had problems with sleep disturbance and
with concentration (especially while reading). The
examination report indicates that the veteran's routine daily
activities were restricted due to his CFS. For example, the
veteran stated that he had stopped golfing. The VA examiner
noted that there were no true incapacitating episodes
requiring bedrest. In fact, the examination report indicates
that the veteran's physician encouraged him to continue
exercising as best that he can. It was noted that the
veteran took continuous medication for his CFS.
Despite the above clinical evidence, the Board does not find
that the evidence supports an initial evaluation greater than
20 percent for the veteran's CFS. In this case, it is
undisputed that the veteran experiences hallmark symptoms of
CFS, to include fatigue, inability to concentrate, headaches,
and muscle aches, and that these symptoms are nearly
constant, as evidenced by the veteran's July 2004 and October
2007 VA evaluations. However, the criteria for the next-
higher evaluation of 40 percent requires that these symptoms
either restrict routine daily activities to 50 to 75 percent
of the pre-illness level, or result in periods of
incapacitation of at least four but less than six weeks total
per year. Indeed, the October 2007 VA examiner noted no
evidence of memory loss upon objective examination. Further,
as of the October 2007 VA examination, the veteran was
holding a job as a clerk for a judge, albeit part-time.
Although the veteran has reported that he is constantly
tired, the Board finds that this and other symptoms of his
CFS have been contemplated by the current initial evaluation
and that the evidence does not indicate that the veteran's
activities have been so severe as to be restricted to 50 to
75 percent of the pre-illness levels, or that he has been
forced to bed rest and treatment by a physician, let alone
for at least four weeks a year as required by the rating
criteria. In this regard, the 2007 VA examiner stated that
there was no medical evidence of emergency room
visits/hospitalizations or incapacitation.
As this issue deals with the rating assigned following the
original claim for service connection, consideration has been
given to the question of whether staged ratings would be in
order. However, as the assigned 20 percent evaluation
reflects the degree of impairment shown since the date of the
grant of service connection, there is no basis for staged
ratings with respect to this claim. Fenderson, 12 Vet.
App. at 126. As the preponderance of the evidence is against
the claim, the benefit of the doubt rule is not applicable.
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App.
49, 54-56 (1990).
Finally, the evidence does not reflect that the disability at
issue causes marked interference with employment (i.e.,
beyond that already contemplated in the assigned evaluation),
or necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable. Hence, assignment of an extra-
schedular evaluation under 38 C.F.R. § 3.321 (2007) is not
warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996);
Bagwell v. Brown, 9 Vet. App. 337 (1996).
II. TDIU
The veteran contends that his service-connected disabilities
render him unemployable, thus warranting a TDIU. See
Informal claim for TDIU, dated in April 2004. For the
reasons that follow, the Board concludes that a TDIU is not
warranted.
Total disability ratings for compensation may be assigned
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of a service-connected disabilities: Provided
that, if there is only one such disability, this disability
shall be ratable at 60 percent or more, and that, if there
are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more, and sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more. 38 C.F.R. § 4.16(a).
Substantially gainful employment is defined as work which is
more than marginal and which permits the individual to earn a
living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).
To establish a total disability rating based on individual
unemployability, there must be impairment so severe that it
is impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340. In
reaching such a determination, the central inquiry is whether
the veteran's service-connected disabilities alone are of
sufficient severity to produce unemployability. Hatlestad v.
Brown, 5 Vet. App. 524, 529 (1993).
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation; provided that permanent
total disability shall be taken to exist when the impairment
is reasonably certain to continue throughout the life of the
disabled person. 38 C.F.R. § 4.15.
The veteran's service-connected disabilities are headaches,
rated as 10 percent disabling from May 18, 2001, and 30
percent disabling from June 30, 2003; fibromyalgia, rated as
20 percent disabling from June 30, 2003; and CFS, rated as 20
percent disabling from June 30, 2003. The combined service-
connected disability rating was 10 percent from May 18, 2001,
and 60 percent from June 30, 2003. Thus, the veteran does
not meet the schedular criteria listed in 38 C.F.R. § 4.16(a)
at any time during the rating period on appeal.
However, it is the established policy of VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. 38 C.F.R. § 4.16(b). Rating
boards should refer to the Director of the Compensation and
Pension Service for extra-schedular consideration all cases
of veterans who are unemployable by reason of service-
connected disabilities but who fail to meet the percentage
requirements set forth in 38 C.F.R. § 4.16(a). The veteran's
service-connected disabilities, employment history,
educational and vocational attainment, and all other factors
having a bearing on the issue must be addressed. 38 C.F.R. §
4.16(b).
In this case, the Board finds that the veteran's service-
connected disabilities have not been shown to preclude
employment consistent with his education and occupational
experience. In a VA Form 21-8940, application for increased
compensation based on unemployability, received in March
2005, the veteran reported occupational experience as a
casino pit manager. The veteran reported he had completed
four years of college and was attending law school with
scheduled completion in May 2007. He reported that he had
become unemployable in December 2000. However, this VA Form
21-8940 indicates that as of March 2005, he was still
employed with a statistical company, part-time. The record
also indicates that the veteran worked in tax preparation and
as a fraud analyst. See VA Form 21-8940. (See also
Transcript "Tr." at 15-22.) The record also contains
several VA Forms 21-4192, requests for employment information
in connection with claim for disability benefits. A VA Form
21-4192 from a casino, dated in December 2005, indicated that
the veteran worked as a pit floorperson. It further noted
that the veteran lasted worked in April 2001 and the reason
for termination was "self-termination." Another VA Form
21-4192, dated in December 2005, noted that the veteran last
worked in August 2002 for a university as a federal
work/study student. It was indicated that the veteran left
this employment because of health issues, which were not
specifically listed on the form. A third VA Form 21-4192,
dated in December 2005, from a statistical company, indicated
that the veteran was working in data entry. At the May 2007
videoconference hearing, the veteran testified that he was a
current law clerk for five judges at a county circuit court
for the past two years. (Id. at 22.) The veteran also
indicated that he was currently employed as a law clerk and
had recently completed law school. (Id.)
Regarding the veteran's service-connected fibromyalgia, at
the May 2007 Board hearing, the veteran has indicated that
medications taken in the past for relief from symptoms
related to fibromyalgia had been at least partially
beneficial. The reason stated by the veteran for not
continuing the medications was that the medications produced
side-effects that interacted with other disability. (See id.
at 8-9.) The Board also notes that VA health professionals
(for example, a May 2005 VA rheumatologist) have incorporated
an exercise regimen into the veteran's fibromyalgia treatment
plan. The Board also notes that clinical findings from VA
medical records dated in May 2005 and December 2005 revealed
that the musculoskeletal system had, at least on those days,
no focal tenderness.
Regarding the veteran's service-connected headaches, at a
September 2003 VA neurological examination, the veteran
stated that he had daily, intense, constant pressure in the
front of his head. He also complained of a burning, searing
type of headache that occurred once or twice a week that
required him to lie down for a few hours. If at work, the
veteran would just "push himself through" the headaches and
keep working. Physical examination revealed that cranial
nerves II through XII were intact. The diagnosis was
tension-type headaches and migraine headaches controlled with
Naprosyn.
At an August 2005 VA neurological consultation, the veteran
complained of two types of headaches. One was a constant
headache that he had when he woke up and when he went to bed.
The other type of headache he would have once or twice a week
that was throbbing and associated with nausea and
photophobia. He indicated that he was on multiple
medications for his headaches. It was noted that a July 2005
CT scan of the head was normal. Neurologic, motor system,
and sensory examination were all normal. The impression was
mixed muscle tension and migraine headaches with normal
neurological examination.
At his May 2007 Board hearing, the veteran stated that he had
headaches on a daily basis. He stated that his headaches
limited his cognitive abilities and made his job as a law
student particularly difficult. He had what he described as
prostrating headache attacks on an average of over once a
week. The veteran observed that as he had been dealing with
headaches for a long time he had tended to minimize their
influence on his life because he had learned to manage them.
He did note, however, that at their most severe stage his
headaches would force him to lie down. He stated that he
would not often have to lie down (approximately once a week),
as through sheer stubbornness and with the help of
medications he had learned to manage the situation.
Regarding the veteran's service-connected CFS, the Board
refers to the above discussion (in Part I of this decision)
concerning the status of this disability.
The Board also notes an April 2001 letter determination of
the Illinois Department of Employment Security finding the
veteran eligible for benefits. It was noted that the veteran
left work at the casino because the employer demoted him
substantially in both duties and wages. The letter
determination noted that the acts of the employer rendered
the work unsuitable for the veteran, and thus his voluntary
leaving was with good cause. The Board notes that this
evidence does not contain any competent opinions relating the
veteran's inability to work to his service-connected
disabilities. The record also contains a letter from Bank
One to the veteran, dated in June 2003, indicating his
employment had been terminated on the grounds of absenteeism
due to an unapproved medical leave. Again, this letter did
not contain a competent opinion relating the veteran's
absenteeism due to medical leave for his service-connected
disabilities.
After conducting an examination for CFS in October 2007, the
VA examiner noted that per the veteran's history, he has
constant fatigue and is unable to hold any job due to his
symptoms as he has recurrent incapacitating episodes and has
to go to the ER. Despite this, the VA examiner commented
that after a thorough review of the claims file and
Computerized Patient Record System records, that there was no
medical evidence of ER visits/hospitalizations or
incapacitation due to his service-connected CFS. It was also
noted that the veteran has a college education and had been
going to law school. The VA examiner then opined that the
veteran is not unemployable solely based on his service-
connected disabilities without regard to his age or other
disabilities.
Based on the foregoing, the Board finds that the veteran is
not precluded from securing and maintaining substantially
gainful employment, consistent with his education and
occupational experience, due to his service-connected
disabilities. The Board acknowledges the veteran's
contentions that he cannot work due to his service-connected
disabilities. The Board notes that the veteran and other lay
persons are competent to make factual observations, but
specialized training and knowledge are necessary to make
competent medical conclusions. As such, the veteran's
contentions are at odds with the objective medical evidence
of record that shows that the veteran has no exceptional or
unusual factor associated with his service-connected
disabilities that render the regular schedular standards
impracticable. The Board places less weight or probative
value on the veteran's statements concerning the effect the
symptoms of his service-connected disabilities have on his
ability to secure and maintain gainful employment than it
does on the objective medical reports. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
Thus, to the extent that his service-connected disabilities
cause occupational impairment, the Board finds that the
veteran is appropriately compensated by the current combined
rating of 60 percent. The veteran's situation does not
present such an exceptional or unusual disability picture as
to warrant entitlement to a TDIU on an extraschedular basis.
For the reasons stated above, the Board concludes that the
preponderance of the evidence is against the veteran's claim
for a TDIU and, as such, the benefit of the doubt rule is not
applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49, 54-56 (1990).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an initial rating in excess of 20 percent for
chronic fatigue syndrome is denied.
Entitlement to TDIU is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs